About: Ilona Bray

Ilona Bray is a former attorney and the author of several Nolo immigration books. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Recent Posts by Ilona Bray

Yes, Home Seller, You Should Mention the Snakes!

snakeSometimes the law and ethics match up nicely, other times, not so much. That’s one of the reasons “The Ethicist” column in The New York Times can be both an entertaining and a frustrating read.

A recent column, “You’re Going to Sell Your Home. Should You Mention the Snakes?” provides an example of when the law and ethics line do match up; yet it reflects a total lack of awareness on the questioner’s part that the matter at hand is primarily a legal one.

The basic situation is that the prospective home sellers live in an area with a “snake problem.” About three times a year, they encounter poisonous copperheads, and have been bitten. They worry that if they reveal the snake issue to prospective home buyers, said buyers will go running in another direction.

The Ethicist basically advised speaking up. Otherwise, he explained, the homeowners will have to live with their conscience if the home’s new owners get bitten; and by speaking up, the sellers can help prepare the new owners to avoid snake contact, and thus minimize the risks. Sensible advice.

The Ethicist also got it right when he said, “Your lawyer or real estate agent would be able to tell you whether you have a legal duty in your state to reveal the facts that you have told me.”

But The Ethicist veered a little off course with the statement that, “Scruples like yours help explain why real estate agents don’t like to have the sellers around when they bring in prospective buyers.” The fact of the matter is that, in most U.S. states, both home sellers AND their real estate agents have an obligation to be forthcoming with any known “material” facts that would affect the value or salability of the property.

Most states have created lengthy, detailed disclosure forms that home sellers, and in some cases their real estate agents as well, must fill out. These forms advise prospective buyers of everything from a leak in the roof to a refrigerator with a wiring problem to a crack in the foundation. Few of these forms actually mention snakes; but no matter, most of them have an “other” clause.

Not only that, but it’s often the real estate agent who explains to the home seller that, far from giving in to the urge to hide problems, being forthcoming is a way to inspire trust and to ease negotiations. The buyer is going to be a lot less inclined to close the deal if, while touring the property, he or she runs into a snake or hears about the problem from a neighbor.

Moreover, full and complete disclosures are an important way to avoid later lawsuits. Failing to provide them is its very own “cause of action” (basis upon which to sue) in many states.

That doesn’t mean there aren’t unscrupulous sellers out there. That keeps lawyers and judges busy, with ongoing lawsuits about what the sellers should have disclosed. But for any seller curious about his or her obligations, and wanting to avoid such lawsuits, a good starting point is Nolo’s state-by-state series of articles on what disclosures are legally required.

Check Out the Writing-Award Winners From the 2016 National Association of Real Estate Editors’ Conference!

The Annual National Association of Real Estate Editors (NAREE) Conference just concluded in New Orleans, bringing together real estate writers, journalists, and industry experts from around the United States.

As always, the announcements of NAREE’s 2015 journalism and book award winners were event highlights.

Here’s a sampler of the writings that caught the judges’ eyes:

  • Josh Salman, of the Sarasota Herald Tribune, discussed flaws in administration and oversight of the EB-5 investor visa program, which many non-citizens use as a way to get a U.S. green card, in many cases by buying into sometimes dubious real estate investments.
  • Ken Harney, Washington Post Writers Group, revealed “Why an agent might refuse to show a house (the low commission).”
  • Jonathan O’Connell of The Washington Post examined the idyllic plans to upgrade Washington for the 2024 Olympics, and explained why, even without having won, the effort could still transform the city.
  • Emilie Rusch, Denver Post, looked into how legalization of marijuana has gobbled up empty commercial real estate in Denver, Colorado.

sell1_1_1And Nolo picked up an award as well: The book “Selling Your House: Nolo’s Essential Guide,” by Ilona Bray won gold in the annual Robert Bruss competition, which recognizes excellence in books covering the field of real estate.

NAREE’s judges commented that the book is a “clear, thorough handbook on selling a house” and noted that the helpful tips serve as “good preparation for those who may not have been in the market for a while.”

Charity Navigator Eases Pressure on Nonprofits to Show Minimal Overhead

starsA back-end change to the rating system metrics used by a watchdog organization for nonprofits may not sound like a big deal, or make for snazzy headlines. But the recent announcement by Charity Navigator that it is “upgrading” the way it evaluates charities and ultimately decides how many “stars” each one merits (one a one to four scale) represents a huge change in attitude, and one that will hopefully trickle down through the entire philanthropic community.

The main change to which I’m referring is in the way Charity Navigator will evaluate a nonprofit’s so-called “administrative expenses” going forward.

Currently, only charities that can claim to have no overhead expenses at all can earn Charity Navigator’s top score for that particular measurement, or ten points. Unless yours is an entirely volunteer-run organization, or never has to actually ask donors for financial support or hire people to handle accounting, development, or other management, that’s almost impossible to achieve.

Under Charity Navigator’s newly announced system, a nonprofit can score ten points if it comes within a given range of overhead expenses, taking into account the type of organization.

It’s a change that seems infinitely more realistic. For years, commentators have noted that, while excessive overhead may mean that someone is lining his or her pockets, some level of overhead is a necessary part of simply running an organization. (What for-profit corporation exists without management?!)

A quote in The York Times sums it up nicely: Elizabeth A.M. Searing, assistant professor at the Rockefeller College of Public Affairs & Policy at the University of Albany and a member of the Charity Navigator task force, explains that the change will make it easier for charities to avoid having to “starve themselves” so as not to appear as if they are spending excessively on overhead.

Yes, Even Charitable Organizations Must Abide By U.S. Trademark Law

pillowfightPlanning a fun theme for a special charity event is an opportunity to exercise one’s creativity, attract a new audience, and . . . receive future nasty letters from lawyers.

Just ask Newmindspace, a Toronto-based nonprofit dedicated to organizing free, fun, all-ages events in places like subway cars and city streets. The organization had to change the theme of its popular lightsaber battles to the “Cats in Space Tour” after receiving a cease-and-desist letter from the attorneys at Lucasfilm (owner of the Star Wars brand).

At least the nonprofit seems to have come to an agreement without going to court or suffering direct financial losses (other than the costs of hiring its own lawyers and rebranding). A worse fate appears to have been a possibility: Newmindspace co-founder Kevin Bracken reportedly said that, after receiving the letter, the threat of a multimillion-dollar lawsuit kept him up at night.

Still, it’s a cautionary tale for any nonprofit. How do you make sure not to step on any toes?

First, understand that simply being a nonprofit is not a defense. It might help in certain situations (particularly if you’re such small potatoes that it’s not worth the larger entity’s time to go after you), but you can’t count on that. In fact, giant, unfeeling corporations aren’t even the only ones to go after trademark violators: Remember the reports of the Susan G. Komen foundation sending its lawyers after smaller charities that try to use the phrase “For the cure?”

Fortunately, simply developing some awareness of the existence of trademark and copyright laws, and how they work, will go a long way toward protecting your nonprofit from missteps.

Briefly summarized, trademark infringement occurs when someone uses the trademark or service mark of another when selling competing or related goods and services; particularly if the use might cause confusion for the average consumer. (See Nolo’s articles on Is It Trademark Infringement? for more on this.) If you’re hoping to piggyback on the success of a theme, character, or design that someone else came up with an is actively using, better think twice.

Relatedly, a copyright violation occurs when someone reproduces, distributes, adapts, or performs a work (art, literature, theatre, music, and so on) whose creator still owns the rights to it. As Nolo author Rich Stim explains, “Some people incorrectly believe that if the purpose of the infringement is not for profit, there is no infringement. For example, if a nonprofit charity uses a copyrighted character in its donation drive and mailings, the charity may be liable for infringement.”

Thankfully for Newmindspace, no one seems to have claimed trademark protection for its most popular event: International Pillow Fight Day.

Wonder How Much This U.S. Citizen Would Have Been Awarded If He’d Been Deported, Not Just Detained?

American flag background - shot and lit in studio

Jhon Erik Ocampo, a U.S. citizen, was recently awarded $20,000 in damages to compensate him for his 2012 arrest by U.S. Immigration and Customs Enforcement (ICE) and subsequent seven-day detention. Yes, he attempted to explain to the ICE officers who arrested him that he was a U.S. citizen–but he couldn’t show proof.

This lack of proof is a common situation for people who “derive” U.S. citizenship. That’s a legal term meaning that, although the person him- or herself was not born in the U.S., a U.S. citizen parent was a citizen or became a naturalized citizen while the child held a green card and lived in the U.S., so that the child became a citizen automatically, by operation of law. (See Nolo’s articles on Acquiring or Deriving Citizenship Through Parents; the exact rules vary depending on the year in which the child was born.)

One way to obtain such proof is to apply for a U.S. passport; but the State Department isn’t always attentive to the rules of derivation, and may deny it.

Another way is to apply to USCIS using Form N-600, Application for Certificate of Citizenship (available from the Forms page of the USCIS website). Mr. Ocampo apparently sent in this form multiple times, with no results. (Normal USCIS processing times for Forms N-600 are several months, but it’s an application that often slips to the bottom of USCIS’s priority list.)

So, for lack of proof, Mr. Ocampo endured a week in custody, and was shuttled between two county jails in Illinois before finally someone at ICE took a closer look at his records, confirmed his U.S. citizenship, and let him go.

Is $20,000 enough to compensate for the loss of a week out of Mr. Ocampo’s life, not to mention the fear that no one would confirm his citizenship and he might be sent out of the country that had been his rightful home for years?

Impossible to say–though there may be some basis for comparison, because ICE has made similar mistakes in literally thousands of cases over the years, according to a 2011 Virginia Journal of Social Policy and the Law study conducted by Jacqueline Stevens, professor of political science at Northwestern University.

Let’s just say that Ocampo would likely have been awarded much more if he’d been among the many documented cases where ICE failed to discover its mistake until after having deported the person. (If deported is the right word at all. You can’t legally “deport” a U.S. citizen; commentators have suggested “kidnapped” or “banished.”)

Take the case of Andres Robles Gonzalez, also a U.S. citizen by virtue of derivation. He was reportedly arrested for allegedly violating U.S. immigration laws. ICE ignored his assertions that he was a U.S. citizen, and placed him in deportation proceedings, after which it removed him to Mexico, in December 2008. He wasn’t allowed back into the U.S. until 2011. His damage award? $350,000.

Then there’s Mark Lyttle, who was born in North Carolina, didn’t speak any Spanish, and yet was deported to Mexico. It took him approximately a year to find a sympathetic consular officer to help him make contact with his family (who had thought he might be dead). He received $175,000.

I wish I could find out what, if any damage award was made to Mario Guerrero Cruz. Born a U.S. citizen, he was mistakenly deported in 1995. When he tried to reenter the U.S., he was reportedly arrested and then convicted of illegal reentry and impersonating a U.S. citizen, and sentenced to over seven years in federal prison.

One thing is clear, however. U.S. authorities could save a lot of money if they’d stop pursuing people who never should have been in immigration custody in the first place–and then have to pay them for their trouble later.

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